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Michael Flynn’s immunity request, explained

President-Elect Donald Trump Holds Meetings At Trump Tower
Flynn.
(Drew Angerer/Getty Images)

“General Flynn certainly has a story to tell, and he very much wants to tell it.”

So begins a Thursday statement from former National Security Adviser Michael Flynn’s attorney, Robert Kelner, about his client’s willingness to testify before the House and Senate intelligence committees in exchange for immunity from prosecution.

The implication is that Flynn has vital information about the ties between Trump and Russia, and that he did some questionable stuff while working for the Trump team. Thus, it would be in the public’s interest for Congress to grant Flynn immunity so he could explain what he did — and how many others in the campaign were involved.

Here’s the catch: We have no idea what, if anything, Flynn actually has.

“If he really had some very specific information about Trump campaign collusion with the Russians ... there’s no way a lawyer would try to sell that information for immunity by way of release of a statement,” says Ronald Wright, a law professor at Wake Forest University who studies immunity deals.

To understand where Wright is coming from, you need to understand a little bit about the way congressional immunity works in the US legal system. You also need to understand Flynn’s particular role in the Trump-Russia saga — because Flynn’s long history of ties to Russia put him in a uniquely significant position.

Ultimately, though, the odds suggest that Flynn won't get an immunity deal. The Senate Intelligence Committee has already turned down his request, according to NBC News; getting it from the House committee would require a two-thirds vote, and the ranking Democrat on the committee, Adam Schiff, said in a statement that he’s not prepared to offer Flynn immunity yet.

“There is still much work and many more witnesses and documents to obtain before any immunity request from any witness can be considered,” Schiff said.

More fundamentally, it’s hard to see Democrats granting one to a widely disliked former Trump official when there’s still a chance the FBI might prosecute him for allegedly lying to the bureau about his contacts with the Russian envoy to the US. The Trump administration’s call for Flynn to appear before Congress, in Sean Spicer’s Friday press briefing, could very well harden their resolve against immunity.

This is all very bad news for Flynn, who ironically said that asking for immunity was proof that you had done something wrong when discussing Hillary Clinton’s email scandal during the campaign. “When you are given immunity, that means that you have probably committed a crime,” he told NBC’s Chuck Todd in an interview.

“There’s every possibility that this will turn into nothing — that nobody will take the bait and he will not get any kind of immunity from anybody,” Wright concludes.

Flynn’s lawyer is making a political appeal, not a legal one

There are two kinds of immunity in the US legal system: “transactional” immunity and “use” immunity. Transactional is the typical type of immunity that you’re probably familiar with from watching cop dramas: We promise not to prosecute you as long as you agree to testify in court against a bigger target. For Flynn to get transactional immunity, he’d need to go to the FBI, which is currently investigating him on counterintelligence charges tied to his communications with the Russian ambassador to the US; Flynn’s lies about those interactions led Trump to fire him in mid-February.

That kind of immunity doesn’t seem very likely. The Wall Street Journal, which first reported Flynn’s appeal, reports that Kelner had already gone to the FBI but has “so far found no takers.” Moreover, publicly releasing a letter spelling out your desire for an immunity deal isn't what attorneys do when they feel they have a strong case that could pave the way for a deal with prosecutors.

“What [prosecutors] want to do is get a story while doing as little damage as possible to other criminal cases,” Wright explains. “The way you do as little damage as possible is you keep it quiet. You don’t negotiate through the press.”

Use immunity is a different story. Any congressional committee conducting an official investigation can offer it, provided there’s a supermajority vote in favor of granting immunity and that a judge signs off afterward. Once granted, it means that nothing the person says when testifying before the committee can be used against them at trial.

In theory, this is supposed to be more limited than transactional immunity: Federal prosecutors can still go after someone who has use immunity, provided they don’t rely on anything the person said during congressional testimony. In practice, however, granting someone use immunity usually ends up making it impossible for prosecutors to successfully get a conviction.

“It is just really hard, later on, to prove to a judge that the prosecutor remained independent and untainted from the information that was bought [by Congress] through the immunity,” Wright explains.

The most famous case here is Lt. Col. Oliver North, a National Security Council staffer in the Reagan administration. North was a pivotal figure in the Iran-Contra scandal, Reagan’s secret sale of weapons to Iran in order to fund the anti-communist Contra guerrillas in Nicaragua. North had lied under oath about the arms sales and altered official records to hide them, crimes that probably would have earned him a prison sentence absent congressional intervention or a presidential pardon.

Yet a joint House-Senate investigative committee, deeming North’s information vital to the public interest, granted him use immunity before the FBI could fully build its case. North’s hearing was televised, and was watched so widely that it became impossible for prosecutors to prove that their case hadn’t been influenced by North’s admissions to Congress about his own activities. His initial conviction was overturned on appeal by a DC federal court, and he went on to have a successful post-government career as a Fox News personality.

Flynn’s lawyer is most likely trying to accomplish something similar: convince members of Congress that the disgraced former national security adviser, like North, has vital information about the investigation into the Trump-Russia scandal. Dangling the possibility of Flynn’s testimony in front of them, and then building public interest in hearing from him, seems like Kelner’s strategy for persuading Congress to make a deal.

Flynn’s connections to Russia make the offer somewhat tempting, but they’re probably not enough

Here’s the attractive core of Kelner’s offer, from Congress’s point of view: Michael Flynn has a very long, very shady history of ties to Russia.

Flynn was fired from his position as the head of the Defense Intelligence Agency in 2014. Furious with the Obama administration over his ouster and its unwillingness to listen to his hardline views about Islamist terrorism, Flynn started to cozy up with Vladimir Putin’s Russia. He became a semi-regular guest on RT, Russia’s English-language propaganda outlet, regularly arguing for the US and Russia to partner in Syria against ISIS.

Flynn did not disclose whether RT was paying him for these appearances. But we’ve since learned that he was paid $45,000 for attending RT’s 10th anniversary gala in December 2015. He sat next to Putin himself, and delivered a speech to the attendees about his view of the world. A recent Washington Post investigation found two more payments from Russian-affiliated companies totaling $22,500, also ostensibly for speeches.

These pro-Russia and hardline anti-Islam views (he once tweeted “fear of Muslims is RATIONAL”) made Flynn a natural for the Trump campaign. He became one of Trump’s key foreign policy advisers and perhaps his most prominent surrogate on national security affairs. During his speech at the Republican National Convention, he led the crowd in a rousing anti-Clinton jeer: “Lock her up! Lock her up!”

After Trump won the election in November, it seems Flynn was a key point of contact between the Trump transition team and Russia. On December 29, the Obama administration announced a series of new sanctions on Russia as punishment for its interference in the US presidential election. That same day, Flynn called Russian Ambassador Sergey Kislyak multiple times — and they talked about the sanctions.

This, ultimately, is what got Flynn fired and into hot water with the FBI. But it wasn’t the calls themselves; it was the fact that Flynn lied to Vice President Mike Pence about it, and the fact that this lie became public knowledge. We still don’t know whether Flynn called Kislyak on his own initiative or with the president’s approval.

The key question for both Congress and the FBI is whether the Trump campaign knew about Russia’s hacking of the Clinton campaign and colluded in it — and, if so, whether Trump himself was involved or aware of the collusion. Flynn’s long history of involvement with the Russians suggests he might have at least some insight to share on this topic — which is what makes his offer enticing.

However, we don’t know that any collusion took place; FBI chief Jim Comey recently told a House panel that law enforcement hasn’t yet found evidence of that. Even if there were improper contacts between Team Trump and Russia, it’s not clear Flynn knew or was involved.

Just as likely, if not more so, is that other Trump campaign associates with close ties to Russia, like former campaign manager Paul Manafort, ran point on any putative coordination with Russian intelligence — if any took place. Manafort has agreed to testify before Congress already, seemingly without any kind of immunity request.

So while Flynn’s past makes him a target of suspicion in this investigation, it’s hardly enough to guarantee he has enough to persuade lawmakers or prosecutors to agree to spare him from court.

And the fact that Flynn’s lawyer released such a high-profile statement, as we’ve discussed, militates against it. So while it might be tempting for Congress to take Flynn up on his offer, they’re savvy enough to pick up on the signal that there isn’t anything here. That appears to be why the Senate investigation, by far the more serious of the two, has already turned down Flynn’s attempt at a deal.

Ultimately, according to Wright, the most likely scenario is that Flynn is attempting to immunize himself against prosecution without having solid information to add about Trump and Russia. If that’s right, then the chances of any kind of immunity are exceedingly low.

Michael Flynn could be in a lot of trouble. And it seems like his attorney knows it.